An opinion has been requested as to whether an Assistant Director of the Juvenile Services Administration (the Employee) may serve as a board member with several non-profit organizations involved in youth services and sexual assault activities. Based on the Employee's description of his duties and the advice of the agency, we advise that this service would be allowable for the two entities that are not affiliated with the agency, and that service with the third would be allowed as long as the agency continues to consider it an assignment as part of the Employee's State duties.
This request was presented by an individual who is currently serving as Acting Assistant Director for Prevention and Interagency Coordination in the Juvenile Services Agency (JSA).1 As Assistant Director, he is responsible for program development and monitoring of collaborative efforts with other agencies designed to prevent delinquency in children. He supervises 6 employees and oversees a budget of $4 million directed to four program areas. A primary aspect of the program and his job is interagency coordination. As to specific program areas, one is the Youth Services Bureau (YSB), a community-based program that involves cooperation with the county governments, which provide a 25% local match in funds. The YSB's are (with four exceptions where they are run by the county government) private non-profit organizations that function as subcontractors to the local governments who are grantees of JSA. They are required to meet significant regulatory requirements established by JSA.
Another program area includes multipurpose services, which are similar to those provided by the YSB's, except that they tend to be more specifically tailored to the needs of the particular community. In this area there are therefore not so many regulatory program requirements specified as with the Youth Services Bureau. A third program is the runaway program, which involves emergency shelters for youngsters who are runaways, or who are thrown out of their homes or otherwise rejected. The shelters provide shelter and counseling to try to help the child get back to his own home or make other acceptable alternative living arrangements. The runaway programs are run by private nonprofit organizations that are funded with JSA funds on a sole source basis. There are four such programs in the State, two in Prince George's County, one in Montgomery County, and one in Baltimore City. The shelters may also receive some funding directly from the federal government. The Diversion program, a fourth activity handled in the Requestor's office, is designed to deal with alleged delinquents who have not before been alleged delinquents who have not before been involved in the system. These programs are also run by private non-profit agencies through the competitive bidding process.
The Requestor says that his job includes participating in development of the Requests for Proposals for the Diversion projects, but that he does not serve on the evaluation teams or otherwise participate in the procurement of these services. According to the Requestor, his job is to do program development and monitor these programs for compliance with JSA goals and program directions, as all of these programs are required to comply with agency directives and requirements. He is involved in reviewing budget requests for changes in activities by the entities, and also makes general programmatic recommendations to the agency's administrative office regarding the budget.
This request involves the Requestor's non-compensated service on the Boards of Directors of three private non-profit entities. The first is the Howard County Sexual Assault Center (the Center), a group whose function is to provide crisis intervention, counseling and court companionship to victims of rape and sexual assault, both children and adults. The group also has a speaker's bureau and engages in a variety of public information activities. The Requestor indicates that he is a resident of Howard County, and that his employment and interest in these types of activities is known. He says he was called and invited to serve by a representative of the entity and has been affiliated with this group for about 45 years.
He says that he has not had any dealings with the Center in connection with his JSA work, and that it does not contract with JSA or with a local government in connection with JSA's program. Most of the Center's services are purchased by the State Department of Human Resources, and it is also funded through some private sources. The Sexual Assault Center does not receive any referrals from the Requestor's office, but it may be viewed as a resource for local JSA program offices. This group does receive grant funds from the Juvenile Justice Advisory Council (JJAC), an independent agency that has been connected with JSA for certain administrative purposes, but is not a part of that agency. The grant is a three-year grant under which the entity expanded its services to include children, primarily by adding a therapist to provide services to children that have been sexually abused. The Executive Director of JJAC indicates that no one from JSA in general or the Requestor's program in particular has been involved in this project.
The second group is the Maryland Action to Prevent Child Abuse, Inc. (MAPCA). This is an entity that is a successor to the Parents Anonymous organization and it is also funded primarily by the Department of Human Resources. The Requestor indicates that a part of his job involves speaking to various groups regarding the service needs to troubled youth, and that his invitation to serve on MAPCA's Board grew out of one of these appearances. This group's primary function is to establish and run parents anonymous groups that are designed to work with parents that are abusers or potential abusers of their children. According to the Requestor, he has had no occasion to deal with this group in his official duties, except to transmit fliers and other information regarding their activities to staff for information purposes. This group is apparently not a JSA referral source, and the Requestor indicates that it is not funded or regulated by the agency.
The third entity, the Mid/Atlantic Network, is a regional association of youth services entities, primarily runaway shelters. The Requestor says that its membership includes the four runaway shelter programs in Maryland that are funded and monitored by his office, as well as comparable entities in the surrounding mid-atlantic area. He says that his service on this group came about as a result of the request from the group to the Director of JSA for an agency representative to serve on the entity's Board. He was designated by the then-Director to serve on behalf of JSA. He says that he has attended one meeting as a guest and that his appointment by JSA was subsequently confirmed by the Mid/Atlantic Board.
The issue presented in this request is whether any of the Requestor's affiliations with these groups would be barred by the outside employment prohibitions of the Public Ethics Law. (Article 40A, Annotated Code of Maryland, the Ethics Law) Section 3-103(a)(1)(i) of the Law prohibits an employee from being employed by any entity that contracts with or is regulated by his agency. Section 3-103(a)(1)(ii) further prohibits any other employment that would impair the individual's impartiality or independence of judgment. We have in the past generally treated service on Boards that have management responsibilities as an employment relationship even where there is no compensation, and believe that the Requestor's affiliation with these entities would come within this principle. Both MAPCA and the Howard County Sexual Assault Center are individual entities operating in Maryland. As neither of them appears to be regulated by or have any contractual dealings with the JSA, however, we do not believe that the Requestor has an employment relationship with them which would come within the strict proscription of §3-103(a)(1)(i).
His service with these two entities is thus a question of whether the activity would result in impairment of his functioning in his State position as contemplated in §3-103(a)(1)(ii) of the Law. In applying the impairment provision of this section, we have generally looked to State duties to determine whether the individual carries out any functions that could be expected to be impacted by the private relationships. Particular concern has been expressed where the private entity was an actual or potential referral source, or where the individual has policy or programmatic duties that would bring him into contact with the entity as part of his official activities.2 As neither of these entities appears to be directly related to the work of the JSA or to the Requestor's duties, we conclude, following these Opinions, that his service with them as described is not barred by this provision of the Ethics Law.
Though Mid/Atlantic also appears not to have any direct contracts or regulatory relationships with JSA, it does have some involvement with the Requestor's activities, since its membership includes several runaway programs. These are entities that do contract with the agency and are actually monitored by the Requestor. We have addressed the question of regulatory or contractual dealings with members of an association, in several situations. (See, for example, Opinions No. 87-6, No. 85-19, No. 86-6, No. 81-23, and No. 81-5.) Our conclusions allowing certain activities have relied on the particular and narrowly defined fact situations of the specific request, and have involved relatively indirect official relationships with the regulated member entities. Given the significance of the relationships here between the runaway programs and the Requestor's official duties, we would be concerned about his continuing his service on the Mid/Atlantic Board if it were to be treated as a private employment activity.
The Requestor's service with Mid/Atlantic, however, appears to have come about as a result of a request to JSA, and to involve his representation of the agency in this multi-state organization. Though the representative of the agency Director indicates that the general view is that agency personnel should not serve with private entities that are agency grantors, it believes that the Requestor's current representation of the agency with the Mid/Atlantic Network can continue while agency reorganization and program review proceeds. We therefore believe that this situation is covered under several recent Commission Opinions that have allowed activities that were treated as part of the employees' official agency duties. (See our Opinion No. 87-4 and Opinions cited there.)
To the extent that the agency continues to see his service with Mid/Atlantic as part of his official duties, and this service meets the criteria that we have developed for this type of activity, we advise that this service would not be inconsistent with the employment provisions of the Ethics Law. Should this situation change, however, the Requestor should seek further advice if he proposes to continue to be affiliated with the entity.
M. Peter Moser, Chairman
William J. Evans
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Date: August 13, 1987
1 This agency was formerly the Juvenile Services Administration and functioned as part of the Department of Health and Mental Hygiene. It was reorganized and made an independent agency reporting to the Governor during the 1987 Session of the General Assembly (Ch. 290, Laws of 1987). A new Director has recently been appointed, and a study is currently being conducted that could reorganize and reassign staff and program offices. The discussion presented here is based on the current position held by the Requestor and his duties and program responsibilities as they existed at the time this request was heard.
2 See, for example, Opinions No. 85-18, No. 85-6, No. 84-31, and No. 83-20.